Allowed

Mohammad Shahid and 2 Others v. State of U P and 7 Others

Allahabad HC12 Jan 2021WPIL/1720/2020

Case brief

AI extract

What is this about?

In this PIL, the Court addressed illegal encroachment on a Muslim graveyard (Kabristan) being used as a road. The Court directed the District Magistrate to stop encroachment, forbid public use of the land as a road, and allow the construction of a boundary wall to protect the site.

What did the court decide?

Directions were issued to stop encroachment, prohibit public use of the Kabristan as a road, and permit the construction of a boundary wall by the petitioners.

Mohammad Shahid and 2 Others Vs State of U… — Pension and Retirement Benefits | Allahabad HC (2021)

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Court No. - 9

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Case :- PUBLIC INTEREST LITIGATION (PIL) No. - 1720 of 2020

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Petitioner :- Mohammad Shahid And 2 Others Respondent :- State Of U P And 7 Others Counsel for Petitioner :- Ayub Khan Counsel for Respondent :- C.S.C.

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Hon'ble Sanjay Yadav,J. Hon'ble Jayant Banerji,J.

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The petitioners who claim to be public spirited persons and permanently residing at Village Boonda, Pargana & Tehsil Chayal, District Kaushambi have filed this public interest litigation seeking a mandamus directing the respondent nos. 1, 2 and 3, that is to say-

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1. State of Uttar Pradesh Through Principal Secretary, Ministry of Revenue Affairs, Government of U.P., Lucknow,

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2. District Magistrate, Kaushambi,

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3. Sub Divisional Magistrate, Chayal, Kaushambi,

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to take necessary action against illegal encroachment/ damage made by the respondent nos. 4 to 8 and associated persons on the Kabristan (Muslim graveyard) existing over Arazi No. 193 area 0.3880 hectare situated at Village Boonda, Pargana & Tehsil Chayal, District Kaushambi. A further prayer has been made seeking a mandamus directing the respondents not to interfere in the peaceful construction of the boundary wall of the aforesaid Kabristan.

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It is stated that the private respondents, that is, the respondent nos. 4 to 8 have opened the doors of their houses on the Kabristan side and are using middle of the Kabristan as a road and now they are raising a constructed road in the middle of the aforesaid Arazi No. 193 and 206. It is stated that the petitioner

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along with other members of the Muslim community filed an application before the District Minority Welfare Officer/Assistant Survey Commissioner Waqf, Kaushambi and on that application the concerned authority sent a request to the Sub-Divisional Magistrate, Chayal to enquire into the matter of the Kabristan on Arazi No. 193 are 0.3880 hectare and take necessary action. It is stated that another application was also filed on 22.6.2020 before the District Magistrate, Kaushambi regarding the encroachments made by the private respondents on the aforesaid Kabristan by making a road. Another application was made to the SubDivisional Magistrate on 22.6.2020 itself bringing on record the situation of encroachment existing over the Kabristan on Arazi No. 193. It is alleged that the private respondents are trying to take illegal possession over Gata No. 193 and 206. Along with the affidavit filed in support of this petition, the petitioners have enclosed an uncertified copy of the Khata Vivaran (revenue record) which reflects the entry of Kabristan under Category 6-3 in respect of several Khasra numbers which includes Khasra No. 193 and 206 pertaining to Village Boonda, Pargana & Tehsil Chayal, District Kaushambi. This revenue record pertains to Fasli Year 1422-1427.

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When the matter was listed on 7.1.2021, this Court had directed the Standing Counsel to avail necessary instructions.

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Learned Standing Counsel has submitted the instructions sent by the District Magistrate, Kaushambi along with a letter dated 11.1.2021 for perusal of the Court. These instructions are made a part of the record of this petition.

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Page No. 2 of the instructions, which also bears the signatures of the respondent nos. 2 and 3, reads as follows:

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“Ekk0 mPp U;k;ky; bykgkckn esa fopkjk/khu ih0vkbZ0,y0 la[;k 1720@2020 eks0 'kkfgn ,oa vU; cuke LVsV vkWQ ;w0ih0 ,oa vU; esa bUlVªD'ku nkf[ky djus fo"k;dA

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egksn;]

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ekuuh; mPp U;k;ky; bykgkckn esa fopkjk/khu ih0vkbZ0,y0 la[;k 1720@2020 eks0 'kkfgn ,oa vU; cuke LVsV vkWQ ;w0ih0 ,oa vU; es ikfjr vkns'k fnukad 07-01-2021 ^ ^ Let this petition for writ be listed on 12^th January, 2021. In the meanwhile, learned Standing Counsel may avail necessary instructions.”

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mDr vkns'k ds vuqikyu esa lknj voxr djkuk gS fd iz'uxr xkVk la0 193 jdck 0-3880gs0 dfcLrku ds [kkrs esa ntZ vfHkys[k gSA ftldh fnukad 09-01-2021 dks ;kphx.k dh mifLFkfr esa tkap dh x;hA tkap ds nkSjku mifLFkr ;kphx.k ds vfHker dks tkuk x;k] mUgksus tkap ds nkSjku crk;k fd gekjh dfczLrku dh Hkwfe ij tks jkLrk ije ijkxr :i ls pyk vk jgk FkkA mlh dks ftyk iapk;r vius en ls vkj0lh0lh0 jksM tufgr ds fy;s cuok;k gSA ftldk mi;ksx ge ;kphx.k rkft;k oxSjk ys tkus esa o vU; nSfud fØ;k dyki ds fy, mi;ksx djrs gSA lkFk gh blh jkLrs dk mi;ksx vU; xzke oklh Hkh vius fnu izfrfnu ds dk;Z dyki gsrq ije ijkexr :i ls djrs vk jgs gSA ftl ij ;kphx.k dks dksbZ vkifRr ugh gSA mudh ekax gS fd gekjh dfczLrku dh Hkwfe dks 'kkldh; [kpZ ls ckmUMªh oky cukdj lqjf{kr fd;k tk;A ftlls Hkfo"; esa dCtk lEca/kh fookn u jgsA

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mDr ds lEcU/k esa ftyk vYila[;d dY;k.k vf/kdkjh dkS'kkEch dks miftykf/kdkjh pk;y ds dk;kZy; i=kad la[;k 4@okn fyfid pk;y fnukad 09-01-2021 ds ek/;e ls mDr Hkwfe ij ckmUMªh oky djk;s tkus ds lEcU/k esa vkis{kk dh x;h gSA ftlds Øe esa ftyk vYila[;d dY;k.k vf/kdkjh dkSHkkEch us vius dk;kZy; ds i=kad la[;k 507@v0l0d0dkS0@okn fy0@2020&21 fnukad 11-01-2021 ds }kjk voxr djk;k gS fd orZeku esa 'kklu ds }kjk dfczLrku dh ckmUMªh oky ds lEcU/k esa dksbZ ctV vkoafVr ugh gSA

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mDr rF;ksa ds vkyksd esa Li"V djuk gS fd iz'uxr Hkw[k.M [kkyh gS rFkk dfczLrku dh Hkwfe ij ckmUMªh oky cukdj lqjf{kr o lajf{kr djus ds lEcU/k esa lEcfU/kr foHkkx }kjk voxr djk;k x;k gS fd iz'uxr en esa 'kklu }kjk dksbZ /ku vkoafVr ugh gSA rn~uqlkj ek0 U;k;ky; ds le{k bULVªD'ku vk[;k lsok esa lknj iszf"krA

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viBuh; viBuh; viBuh; viBuh; g0 ys[kiky vkj0vkbZ0 ¼lh½ rglhynkj miftykf/kdkjh usoknk pk;y&dkS'kkEch pk;y&dkS'kkEch

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g0 viBuh; 11-01-21 ftykf/kdkjh dkS'kkEchA**

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However, the statement of the petitioners and the villagers recorded by the revenue authorities appears on page no. 5 of the aforesaid instructions, which reads as follows:

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^^vkt fnukad 09-01-2021 dks ek0 mPp U;k;ky; esa fopkjk/khu ih0vkbZ0,y0 fjV la0 1720@2020 esa ek0 U;k;ky; ds ikfjr vkns'k fnukad ds leknj esa xzke lHkk cwWnk ij0 o rg0 pk;y tuin dkS'kkEch dh xkVk la0 193@0-388gs0 tks jktLo vfHkys[k esa dfczLrku ds [kkrs esa ntZ vfHkys[k gS fd ekSds ij ;kphx.k dh mifLFkfr esa ekSdk eqvk;uk fd;k x;k vkSj ;kphx.k ds f'kdk;r@ ekWx ds ckjs esa tkudkjh izkIr dh xbZA ;kphx.k us crk;k fd gekjh dfczLrku dh Hkwfe ij tks jkLrk ijEijkxr :i ls pyk vk jgk Fkk mlh dks ftyk iapk;r ds en ls vkj0lh0lh0 jksM tufgr ds fy, cuok;k x;k gS ftldk miHkksx ge ;kphx.k rkft+;k oxSjg ys tkus esa o vU; nSfud thou laca/kh dk;Z djus esa djrs gSA lkFk gh blh jkLrs dk mi;ksx vU; xzkeoklh Hkh vius nSfud dk;Z gsrq ijEijkxr :i ls djrs pys vk jgs gSA ftl ij ge ;kphx.k dks dksbZ vkifRr ugha gSA gekjh ekax flQZ bruh gS fd xzkeoklh gekjh dfczLrku dh Hkwfe ls vkuk tkuk can djsa rFkk ckm.Mªh oky 'kkldh; en ls fuekZ.k djkdj dfczLrku dh Hkwfe dks lqjf{kr fd;k tk; ftlls Hkfo"; es dCtk laca/kh fookn u jgsA orZeku esa dfczLrku dh Hkwfe iw.kZr% [kkyh gSA**

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Therefore, it is admitted by the instructing respondents, that on 9.1.2021 the site was inspected by the revenue authorities and the complaints /demands of the petitioners were enquired into. It is also admitted that plot no. 193 area 0.3880 hectares situated at Village Boonda, Pargana & Tehsil Chayal, District Kaushambi is recorded as Kabristan land in the revenue records. During the enquiry, the petitioners and other signatories to the statement have stated that on the land of the Kabristan, the road which was being customarily used was being reinforced with cement concrete from the funds of the District Panchayat which road is being used by the petitioners for taking 'Tazias', etc. and for daily passage. Additionally, that road is being customarily used by the villagers on a daily basis regarding which the petitioners have no objection. The petitioners' demand is only that the villagers stop their movement over the Kabristan land and a boundary wall be made from the funds of the Government for protecting the same so that

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in future no dispute arises regarding any encroachment.

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Categorical assertions have been made in the writ petition regarding encroachments being made by the private respondents and their associates and attempts to communalize the issue. The instructions sent by the instructing respondents to the standing counsel are deafeningly silent on this issue. The learned standing counsel has sought to urge that the petitioners have an alternative remedy under Section 133 of the Code of Criminal Procedure and so this Court may not interfere. This Court cannot close its eyes to the ground realities. Every citizen has an equal and inalienable right as any other citizen for living peacefully, without fear of antisocial elements and for enjoying religious freedom. Wherever, the High Court has reason to believe that fundamental and Constitutional rights of citizens are threatened, Article 226 of the Constitution of India vests sufficient powers to intervene and issue necessary directions. This Court is of the opinion that the customary and religious rights of the Muslim community of village Boonda are being threatened and infringed by the acts of certain persons encroaching on the aforesaid kabristan. Though the private respondents have not been noticed, however, no positive directions effecting their legal rights are proposed to be issued against them.

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Under the circumstances, this petition is being disposed of with the following directions:

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1. Steps shall be taken forthwith by the respondent no.2, the District Magistrate, to stop any encroachment over the aforesaid Kabristan by the private respondents or their associates. Any vandalism or attempts to vitiate the communal harmony by the private respondents or their associates shall be dealt with promptly by the Inspector Incharge of the police station concerned. We direct the Senior Superintendent of Police to ensure compliance.

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2. A boundary wall with proper gates for the aforesaid kabristan on plot no.193 aforesaid shall be allowed to be constructed by the petitioners, after demarcation being done by the revenue authorities forthwith, and no one should be permitted to create any hindrance in its construction. Caretakers of the kabristan belonging to the Muslim community shall be entitled to lock its gates. The District Magistrate shall ensure compliance.

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3. No part of the plot no.193, over which the kabristan exists, would be used as a road by the general public for passage through the kabristan.

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Compliance of this order shall be reported to this Court by affidavit/s within a period of three months from today failing which the District Magistrate and the Senior Superintendent of Police shall be personally present in Court to report compliance when the matter is listed. List on 17.4.2021.

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Order Date :- 12.1.2021 A. V. Singh

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(Jayant Banerji, J.) (Sanjay Yadav, J.)

Mohammad Shahid and 2 Others v. State of U P and 7 Others

Case brief

What is this about?

What did the court decide?

Mohammad Shahid and 2 Others v. State of U P and 7 Others

Case brief

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